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DOMA Update

Posted Wednesday, September 5, 2012 by John S. Palmer

Recently there have been two major developments in the fight over whether the definition of “marriage” contained in the Federal Defense of Marriage Act (DOMA) is constitutional. Section 3 of DOMA excludes same-sex couples from the definition of “marriage” as that term is used in any federal law or regulation. As a result, an estimated 100,000 legally married same-sex couples are not eligible for benefits available to married couples under at least 1,138 federal laws and regulations.

This summer two US District Courts ruled that Section 3 of DOMA is unconstitutional. Although they won, the plaintiffs in both cases have asked the US Supreme Court to accept review in an effort to avoid a protracted appeals process in the lower courts.

One ruling was issued July 31st by the US District Court in Connecticut in the case of Pedersen v. Office of Personnel Management, et al, which was brought by several same-sex couples who were legally married under the laws of Connecticut, Vermont and New Hampshire. Based on the definition of “marriage” contained in Section 3 of DOMA, some of the plaintiffs were denied spousal benefits available to federal employees under the Federal Employees Health Benefits Act and the Family and Medical Leave Act; two couples were denied income tax refunds for the extra tax paid by having to file separately instead of as “married filing jointly”; one couple was denied spousal retirement benefits; and a widower was denied the Social Security lump sum death benefit available to surviving spouses.

Section 3 of DOMA states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ’marriage’ means only a legal union between one man and one woman as husband and wife, and the word ’spouse’ refers only to a person of the opposite sex who is a husband or a wife.

The plaintiffs asserted that this statute violates the equal protection clause of the Fifth Amendment, and the court agreed. In a 104-page opinion, the judge found no rational relationship between Section 3 of DOMA and the various objectives enunciated by Congress when the law was enacted.

Although the plaintiffs won, on August 22nd they filed a Petition for Writ of Certiorari in the US Supreme Court, arguing that the case merits consideration by the Supreme Court without further proceedings in the lower courts, most likely because an appeal by the government was inevitable. Because the Obama administration has opted not to defend DOMA, the case is being litigated on behalf of the federal government by the Bipartisan Legal Advisory Group of the US House of Representatives (BLAG), a group consisting of House Speaker John Boehner and 4 other house members.

On June 6th, the US District Court for the Southern District of New York reached a similar decision in Windsor v US, a case involving the surviving spouse of a legally married same-sex couple; the estate of the deceased spouse was forced to pay more than $363,000 in estate taxes after it was denied a marital deduction for property inherited by the surviving spouse. Applying the same “rational basis” test used in Pedersen, the judge found that Section 3 of DOMA violates the equal protection clause of the Fifth Amendment and entered judgment in favor of the plaintiff for the tax paid, plus interest and court costs.

Windsor has been appealed to the Second Circuit Court of Appeals; oral arguments are scheduled for September 27th. Meanwhile, the plaintiff’s attorneys have also filed a Petition for Writ of Certiorari in the US Supreme Court, asking it to accept the case without waiting for a ruling by the Second Circuit, in order to expedite a final decision due to the advanced age and poor health of the plaintiff.

In addition to Pedersen and Windsor, there are two other DOMA challenges with certiorari petitions pending before the US Supreme Court, which is expected to accept at least one of the cases for the term that begins next month. If that occurs, the Supreme Court could decide the issue sometime in 2013.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056